CHAPTER 8

MISAPPROPRIATION: SUBSTANTIALITY OF THE TAKING

The Copyright Act of 1976 does not define infringement. It provides a list of exclusive rights that the copyright owner holds[1] and declares anyone who violates any of those rights to be an infringer.[2] Neither does the Act define or even mention plagiarism. Plagiarism, of course, interferes with the copyright owner's exclusive rights to copy and distribute the work. Although previous chapters have considered these and other aspects of plagiarism and infringement, several questions deserve special attention as they apply to music.

The owner has a legal cause of action only when the portion copied is protectable:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.[3]

Copyright protects only the author's expression, not his idea. The idea-expression dichotomy, now codified by the passage quoted above, presents particularly difficult conceptual problems in music. Do ideas exist in music, or is music pure expression thus rendering the dichotomy a nullity? If musical ideas do exist, what is their nature and can they be separated from expression? The court has generated these doctrines in cases involving literature and plastic arts, genres which at least accept the terminology of the dichotomy if not the premise. The court has yet to grapple seriously with the application of this doctrine to music.

This chapter examines the issue of protectability from philosophical, economic, and aesthetic perspectives. The philosophical approach to plagiarism concerns the source and proper scope of the author's rights of ownership; it looks at justifications for the author's monopoly and for the appropriation of his work by others. The economic approach asks whether the author has been harmed by the alleged infringement in a way that warrants a remedy. The aesthetic approach looks at the nature of music; it asks how the idea-expression dichotomy can be stated in musical terms. It asks also how the philosophical and economic questions can be decided with reference to music.

Even if the philosophical, economic, and aesthetic questions could yield satisfactory, non-contradictory answers, which they cannot, more would be needed. The law must accommodate these three viewpoints in one policy. The law must balance competing goals and relative harms along with the practical concerns of costs in implementing the policy. This policy question has already been translated into law, but it bears continued scrutiny in light of its constitutional purpose: to promote progress in the arts.[4]

The Philosophical Question

The utilitarian theory of copyright protection provides an entirely negative means of protecting artists, the grant of a monopoly.[5] But the theory also provides the primary justification: the public wants to encourage the production of art and other intellectual creations. Only by temporarily depriving the public of certain rights and investing those rights in the artist will the law encourage individuals to create new works.

The line between what belongs to the author and what belongs to the public, though, cannot be easily drawn. The artist has learned his craft from the examples of others, and his understanding reflects the contributions made by other artists to the public's body of knowledge. So, part of the artist's new work may draw from sources already in the public domain. Also, part of the artist's new work is conveyed in a way that surrenders control; the artist cannot retain rights in the knowledge he imparts. Therefore, the artist commits some aspects of his work to the public domain upon publication.

Hegel concluded that plagiarism could not be defined or determined by any precise principle. The product of intellectual labors becomes an external thing that the perceiver may make his own and communicate to others in his own way.[6] The purchaser of an intellectual work receives the full use and benefit of a single copy, but without the right to duplicate that copy. The author retains the sole right, a special right, to control duplication.[7] What, then, constitutes the full use and benefit of a single copy? The purpose of creating an intellectual work is for people other than the author to understand it, for them to make it the possession of their own ideas and memory.[8] Therefore, those who purchase the single copy or understand the author's communication gain a capital asset through learning; they may regard that asset as their own and rightfully reproduce that learning in their own books.[9] Hegel explained:

Now to what extent does the new form which turns up when something is expressed again and again transform the available stock of knowledge, and in particular the thoughts of others who still retain external property in those intellectual productions of theirs, into a private mental property of the individual reproducer and thereby give him or fail to give him the right to make them his external property as well? To what extent is such repetition of another's material in one's book a plagiarism? There is no precise principle of determination available to answer these questions, and therefore they cannot be finally settled either in principle or by positive legislation. Hence plagiarism would have to be a matter of honour and be held in check by honour.[10]

Hegel knew of few plagiarism claims in his day and suspected that honor might have succeeded in abolishing plagiarism. Considering the number of musical and literary works registered with the Copyright Office each year, plagiarism claims may be seen today as quite infrequent. Honor has succeeded at least to some extent. The public views plagiarism as a serious breach of ethics. Still, the number of infringement claims successfully prosecuted by plaintiffs represents a relatively small fraction of the claims filed, not counting settlements. The dearth of successful claims does not seem to result from public indifference.

Hegel also considered the possibility that the public would accept the most trivial changes as badges of originality, thereby virtually eliminating a claimant's chances for successful prosecution.[11] Plagiarism enthusiasts seem to subscribe to this notion of a public incapable of detecting similarities and thus ignorant of infringement.

Public attitudes toward various forms of infringement seem rather mixed. Petty piracies earn little disapproval; the ease with which copyrighted materials can be duplicated tempts almost everyone. Plagiarism is considered more serious, perhaps because of the magnitude of the gain if the plagiarist is successful or perhaps because the plagiarist has sought to make fools of the public. Thus, a jury is probably prepared to find in favor of a plaintiff who presents a good case. On the other hand, if the jury too blithely labels similarities as plagiarism, the utilitarian purpose of copyright will be seriously degraded. The plaintiff who succeeds where he should not is a plagiarist extraordinaire. Hegel seems right in recognizing that the public accepts minute changes as indicia of originality, but this might result not from trivial distinctions but from more subtle and intellectually astute ones. The question is whether the public discerns originality in the details or fails to detect abstract similarities. Perhaps the dullest minds perceive the greatest number of plagiarisms.

The philosophical approach leaves many questions unanswered. But it informs the inquiry, pointing out that the author's expressions owe something to prior works and convey something to the public domain. Some aspects of the work must be unprotectable and some uses of protectable expressions must be fair uses and not infringements.

The Economic Question

Properly conceived, the economic question concerns the protectability of an author's work. It balances the rights of the author with those of the public in order to promote the creation of artistic works. It addresses the Constitution's expressly utilitarian purpose for granting copyright protections.[12]

Economics also helps to determine the scope of "fair use," the right of others to use the author's expression in a reasonable manner. One of the factors to be considered in determining fair use is "the effect of the use upon the potential market for or value of the copyright work."[13] This has been labeled the "demand test," because it concerns the effect of the accused work on the public demand for the original work.[14]

Lay Listener Test

The trier of fact's ability to discern appropriate distinctions determines the utility of the lay audience test. Infringement must be based on a resemblance noticeable to the average hearer.[15] The lay listener test requires an appropriation to be perceptible by the music loving public.[16] Commentators have compared this approach to the "reasonable man" standard applied to other areas of law, but the analogy fails in one essential respect:

[I]n those other areas (e.g., torts, trusts, corporations, criminal law) the trier is asked to compare the defendant's actions with what the trier's own (presumably reasonably prudent) actions would be under the same circumstances. Thus in a negligence case, the trier puts himself into the defendant's shoes, not the shoes of an "ordinary observer" of the accident. Contrast this with the [average lay observer test], where the essential question is: did the defendant copy from plaintiff? Here the trier is not equipped to put himself into the defendant's shoes. He cannot meaningfully answer whether, if he were in the defendant's shoes, he would have been constrained to copy from the plaintiff in order to achieve the given result.[17]

Negligence standards seek primarily to compensate victims and to distribute efficiently the true costs of accidents, partly by defining foreseeability in economic terms. Michael Sitzer argues that the lay listener test should be employed to promote this kind of efficiency in copyright law by going directly to the economic-utilitarian question.[18] The Constitution's utilitarian goal is not served by construing protection too broadly, allowing an author to preempt further expression, or too narrowly, allowing a subsequent author to deprive the original author of the fruits of his labor. The lay listener is asked to judge economic rather than artistic value.

Arnstein v. Porter explained the rationale for the lay listener test:

The plaintiff's legally protected interest is not, as such, his reputation as a musician but his interest in the potential financial returns from his compositions which derive from the lay public's approbation of his efforts. The question, therefore, is whether defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to plaintiff.[19]

The test relies strongly on an economic philosophy of copyright law. It asks whether the lay audience would find the works so similar that a purchaser might be motivated to buy the defendant's work instead of the plaintiff's.

The lay audience test has moved beyond the question of protectability. It now embraces the other part of Arnstein's bifurcation: the question of substantial similarities as that term relates to the existence of copying.[20] The lay audience test concerns not only the scope of plaintiff's protection; it also concerns whether the similarities are sufficient to allow an inference of copying. Thus, courts have demonstrated a tendency to expand the test beyond the economic aspects of copyright, allowing it to intrude on the musical question as well. This doctrinal imprecision has one rather imperfect benefit: whereas the bifurcated test encourages the trier of fact to separate the intellectual and intuitive responses to music, the lay audience test at least asks the trier of fact to listen as he analyzes.

Intended Audience Test

A recent change in the law refines the economic question, but it also raises serious concerns about the expansion of the lay audience test beyond the economic question. Dawson v. Hinshaw Music[21] mandates a change in the lay audience test, calling for the trier of fact to apply an "intended audience" test. The new test, which purports to be merely a more accurate interpretation of the old Arnstein test, addresses the question of protectability more efficiently. If the jury applies a test based on the public's perception, and the public cannot perceive the distinctions used by purchasers of a particular type of music to determine originality, then those purchasers might be deprived of new works of art that they consider original.

A trier of fact, of course, cannot apply the intended audience test by referring to his own visceral reactions unless he belongs to that intended audience. Litigants must present some evidence to the jury in order to inform them as to how the intended audience would judge the similarities at issue. The evidentiary problems presented by this inquiry more nearly approximate those of trademark law, which judges similarities according to "likelihood of confusion." One primary problem concerns foundation: who is qualified to testify on the tastes and opinions of a certain group of people? Trademark cases have effectively resorted to opinion surveys, which provide the surveyor with objective data to support his testimony. The surveyor then appears as an expert witness to interpret the data for the jury. Survey methodology, however, does not easily translate into the musical arena.

Because the reactions of a representative sample cannot be put before the jury, the jury can either rely on a non-representative sample or on a music expert to determine the reactions of the intended audience. Both parties could probably produce aficionados of the style in question to testify in their favor. Music experts might help the trier of fact slightly more by suggesting a musical basis for the distinctions that the intended audience would hear and explaining the stylistic traits that attract a particular audience. In either case, the trier of fact will be asked to suppress his own perceptions and to listen as he supposes someone else might.

The myth that music divides into "kinds," subject to different analyses, different principles, and different methods of perception, will be bolstered by this approach. Although counsel already tend to exclude musically sophisticated people from the jury, a jury composed of those least confident in their own perceptive abilities may be more susceptible to manipulation under the intended audience test. Such juries will be more likely to believe that different kinds of music adhere to different principles.[22] While an unsophisticated listener may believe his own ears under the lay listener test, he is more likely to believe that others possess unusual auditory powers under the intended audience test.

The intended audience test does not improve on another primary failing of the lay audience test. The inquiry still tends to focus more on similarities in and of themselves than on copying. The lay ear is employed in the intended audience test to assess music's appeal in a highly subjective way. Whereas the lay audience test allowed the jury to discount similarities that they could not hear, the intended audience test allows the jury to deem unperceived similarities to be substantial.[23]

As a purely economic test, the intended audience approach represents an improvement. The test changes the focus from music's general appeal to its specific appeal to a definable audience. The test might be further refined along these lines to address the reactions of the intended purchaser rather than the intended audience, thus utilizing the test's strengths to their best advantage. Terminology that focuses on the "audience" implies that the test answers the aesthetic question, which, as currently constructed, it clearly does not. An inquiry into the similarities between two specific works is simply too anecdotal to be classified as based on aesthetics. The jury may apply its own aesthetic measures to similarities through the lay audience test, but the evidence presented to the jury is insufficient to allow them to reach conclusions regarding the aesthetic judgments of a foreign "intended" audience. The intended audience test more effectively addresses the economic question, because purchasing habits provide the trier of fact with a greater amount of objective data.

Although the intended audience test seems to improve the lay audience test, from a practical perspective it is unlikely to generate a better result. The intended audience test seeks one primary benefit: preventing the jury from imposing its own blunt standards on the more discerning appetites of those familiar with the subtleties of a particular style. But if the intended audience test spills over into the musical question, the jury may be encouraged to trust analysis indiscriminately‑-without testing it aurally. That will further widen the gap between the intellectual and intuitive approaches to music, because the jury will be unable to apply its own intuition. Instead, the jury will have to wait for evidence on the intuitive responses of others.

Thus, the intended audience test should not intrude on the question of whether substantial similarities warrant an inference of copying. The defendant either created his work independently or copied it, and the fact of plagiarism does not change according to the standards of a particular audience. Similarities represent only the circumstantial indicator of copying, not the ultimate question. The trier of fact needs to apply his own aural perception in an intelligent assessment of those similarities. The test might still be useful to the question of protectability, where the intended audience can assess originality. Or, the test might be best confined to the question of damages. The trier of fact must define the intended audience in order to address the economic impact of infringement.

Effects of the Tests on Expert Testimony

Analysis of music cannot be separated from listening. Yet the bifurcation of infringement tests has promoted the misconception of a dichotomy between listening and the expert's intellectual approach. As a result, the trier of fact is encouraged to listen to the music at one point and to listen to the expert at another. The trier of fact must combine these two processes if it is to assess similarities accurately. Music analysis should not substitute for listening; analysis informs listening and listening informs analysis.

The proper application of a lay observer or intended audience test should flow from this understanding of the purpose of analysis. Unless the trier of fact happens to be a trained musician, the lay observer aspect is inherent in the process. The trier of fact has no other powers to employ. Listening engages the mind in a complex process. It challenges the faculties of experts, intended audiences, and lay observers alike. The trier of fact should not be asked to sacrifice its own powers of observation to speculation concerning the powers of others. Rather, music experts should help the judge or jury member to apply his full powers of perception toward an understanding of the compositional process, musical constructions, and similarities in order to assess the possible existence of copying. If copying exists, the trier of fact might then allow the tastes of the intended audience to inform its judgments on the economic question of protectability.

Arguments in favor of the intended audience test have been used to advance a radical concept of expert testimony, one seriously at odds with an informed approach to music. Sitzer posits:

Application of a bifurcated Arnstein test, supplemented by the use of expert testimony to identify the audience and to explain audience reactions, results in a successful fusion of expert testimony with the audience test.[24]

The Dawson court cites Sitzer's article, noting the possibility that the lay observer may lack the expertise necessary to judge similarities.[25] But Sitzer holds a curious view on musical expertise:

Purchasers of many copyrighted works could be seen as experts. For example, the fans of particular forms of music could be considered experts in their respective fields of interest. . . . In practice, then, an audience test may implicitly involve some of the same technical dissection demanded of experts.[26]

Sitzer thus characterizes music as a rather simple phenomenon, mastered by anyone sufficiently interested to purchase copies and listen. He denies any role for the music theorist at trial and discounts entirely the intellectual approach to music. Sitzer's concept of expertise falls far short of the level of knowledge and training required to produce a forensic analysis. According to Sitzer, dissection and analysis require no training, not even pencil and paper. Sitzer equates analysis with appreciation and imputes technical expertise to fans. Further, Sitzer's approach explains music as divisible into "kinds," and, still less accurately, as only divisible into kinds. According to his concept, analysis ends when the music has been categorized as belonging to a certain style.

The intended audience test should illuminate the economic question, not the musical one. Sitzer goes too far: he suggests that the intended audience test alone can answer both questions, and he would call not music experts but economic experts. This approach ignores the question of copying entirely and renders independent creation irrelevant.

The Aesthetic Question

Aesthetics concerns the nature of art and the place of an individual musical work within the total realm of music. Applied to the question of infringement, aesthetics addresses how a composer achieves originality in music and how common musical elements might be employed in new artistic ways. Aesthetics is the proper approach to defining the idea-expression dichotomy in music. Unless the line separating protectable expression from unprotectable idea is drawn with reference to the art of music, the line will fail in its application.

Rationales for the Idea-Expression Dichotomy

One must understand the rationale behind the idea-expression dichotomy before trying to apply the dichotomy to music. The dichotomy will not yield to purely musical considerations, because it concerns larger and more fundamental issues. The demands of music and law must be reconciled.

The Idea-Expression Dichotomy and the First Amendment

The monopoly granted to an author conflicts with the first amendment principle of free expression.[27] Copyright law limits what subsequent authors can write by depriving them of unlimited use of copyrighted materials. Courts and commentators have attempted to reconcile this conflict and to justify copyright law as beneficial to first amendment principles.[28] Professor Melville Nimmer, author of a respected treatise on copyright law, suggested that the limited monopolies granted to authors actually encourage free speech by providing economic incentives for the author. Nimmer's argument posits that restriction of copying does not hinder first amendment ideals, because the marketplace of ideas does not suffer when it is deprived only of repetition.[29] Further, because ideas do not receive legal protection, the marketplace has free access to the substance underlying an author's works. Copyright law restricts only duplication of an author's particular expression of those ideas.[30]

This belief has profoundly affected the course of copyright jurisprudence. In particular, courts have used the general congruence between copyright and the first amendment to support a practice of ignoring the first amendment when interpreting the copyright law. Consequently, even when first amendment arguments have been placed directly before them, courts have held that no conflict exists between the first amendment and copyright.[31]

Alfred Yen argues that copyright law may have a chilling effect on free expression when, because of the law's ambiguous scope, authors forego their first amendment freedoms for fear of being prosecuted.[32]

Few aspects of copyright law defy understanding so much as the idea-expression dichotomy. The dividing line is difficult to draw in all arts, perhaps particularly so in the most abstract art‑-music. Few composers, if any, can confidently discern that line. The growing practice of consulting plagiarism experts prior to publication of popular and, especially, commercial music may reflect this chilling effect.

Limits of Protectability in Intellectual Property

All forms of intellectual property‑-copyright, trademark, and patent‑-adhere to certain limits of protectability. The balance struck between protecting individual and public interests in each of these various forms of property provides insight into the guiding principle that must be applied to music. Some analogies can be drawn as well among the forms of intellectual property.

Patents

Patent law extends protection only to useful items.[33] An inventor may not claim ownership of a scientific principle. The historic case of O'Reilly v. Morse[34] provides an example. In 1848, Samuel Morse received a patent on his electro-magnetic telegraph. The eighth claim of his patent application read:

I do not propose to limit myself to the specific machinery or parts of machinery described in the foregoing specification and claims; the essence of my invention being the use of the motive power of the electric or galvanic current, which I call electro-magnetism, however developed, for marking or printing intelligible characters, signs or letters at any distance, being a new application of that power, of which I claim to be the first inventor or discover.[35]

Henry O'Reilly constructed a telegraph line between Louisville and Nashville using instruments and means which were substantially those patented by Morse.[36] O'Reilly claimed as part of his defense that Morse's patent was void on its face, because Morse's claim was too broad.[37] The U.S. Supreme Court ruled that the patent was not null and void but that Morse's eighth claim exceeded the scope of patent protection. Justice Taney wrote:

It is impossible to misunderstand the extent of this claim. [Morse] claims the exclusive right to every improvement where the motive power is the electric or galvanic current, and the result is the marking or printing intelligible characters, signs or letters at a distance.

If this claim can be maintained, it matters not by what process or machinery the result is accomplished. For aught that we now know some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff's specification. His invention may be less complicated‑-less liable to get out of order‑-less expensive in construction, and in its operation. But yet if it is covered by this patent the inventor could not use it, nor the public have the benefit of it without the permission of this patentee.[38]

Had Morse's claim been upheld, his monopoly would have extended beyond his useful contribution to science, inhibited further developments, and failed to promote the Constitution's utilitarian goal.

Trademark

Trademark law allows an individual to appropriate a symbol or word, whether pre-existing or not, and apply it to a product. The symbol may be descriptive or fanciful. Trademark law grants a true monopoly that does not expire so long as the mark denotes the source of the product. Infringement entails commercial use of the mark in a manner likely to confuse or deceive the public regarding the source of the product.[39] The key to a valid trademark is its use in conjunction with goods or services to denote the source, not merely the nature, of those goods or services.[40] A mark that becomes the common name of a product rather than the brand name loses its legal protection.[41]

"Kleenex" is an example of a fanciful mark, a word coined by the manufacturer. Applied to the product, it denotes a facial tissue whose source is a particular manufacturer, although most people might not remember that the manufacturer is the Kimberly-Clark Corporation. As long as "Kleenex" continues to distinguish facial tissue made by Kimberly-Clark from that made by Scott Paper, the trademark will be valid. The monopoly granted to Kimberly-Clark deprives the public of nothing. However, if the public comes to use the word "Kleenex" to describe facial tissue made by any manufacturer, in other words if the word becomes the generic name of the product, the trademark can be canceled. Allowing the monopoly to continue would deprive other manufacturers of the ability to call their product by the term the public recognizes, thus damaging the public. "Aspirin," for example, began as a brand name and became generic. Another pharmaceutical company would have great difficulty selling its brand of aspirin if it were precluded from using that term.

Thus, trademark law balances the manufacturer's need to build its reputation and clientele through exclusive use of a trademark with the public's need to facilitate entry into the market of new products. The law protects the property of the manufacturer while ensuring that the public is not misled concerning the source of the products it buys.

Copyright

The balancing of public and individual interests becomes more difficult in copyright law. Baker v. Selden[42] presented what might be best described as a hybrid patent-copyright question, but it is generally deemed the origin of the idea-expression dichotomy.[43] Selden wrote a book entitled "Selden's Condensed Ledger, or Bookkeeping Simplified" in 1859. The book contained an essay on Selden's bookkeeping system and blank forms, which consisted merely of ruled lines and headings, for using the system.[44] Baker then produced a similar bookkeeping plan, but he arranged the columns and headings differently.[45]

The issue was whether Baker's forms infringed Selden's work. Justice Bradley wrote the Supreme Court decision:

Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way. . . .[46]

Copyright could not extend to the subject of Selden's book, the idea behind the work. Selden asserted a copyright that included the subject, not merely his explanation of the subject, and to that extent his claim was not upheld.[47]

The rationale of behind the scope of protection afforded all kinds of intellectual property seems to be that the public retains ownership of some aspects‑-those that the individual did not create and those that the public requires for future development. Regarding those aspects of intellectual property, the public will not yield title to the individual. The "idea" in copyright law seems to include that which pre-exists the work and, therefore, that to which the public has a superior claim. It also seems to include the tools required by any subsequent author to produce another work and to retain sufficient freedom of original expression.

The Social Value of Artistic Creation

The above discussion demonstrates how the public's interest in retaining social wealth drives the limitations of the scope of copyright protection. A corresponding public interest is creation of wealth through the promotion of artistic endeavors.

One school of thought suggests that Locke's labor theory accounts for the property rights inhering in artistic creation. Locke posited a common store theory in which a landowner appropriates to himself that which he labors on effectively. God grants goods in common to mankind, but they cannot be enjoyed in their natural state. Man's labor converts these goods into a useful form; it adds value to them by allowing them to be enjoyed by a human being.[48]

[H]e who appropriates land to himself by his labor does not lessen but increase the common stock of mankind; for the provisions serving to the support of human life produced by one acre of enclosed and cultivated land are‑-to speak much within compass‑-ten times more than those which are yielded by an acre of land of an equal richness lying waste in common. And therefore he that enclosed land, and has a greater plenty of the conveniences of life from ten acres than he could have from a hundred left to nature, may truly be said to give ninety acres to mankind.[49]

Thus, granting property rights in goods procured through labor increases the common stock of mankind and fulfills the utilitarian principle.[50]

The laborer owns only the amount of land that he can keep productive. If he takes more, he commits waste. This non-waste condition prevents a laborer from accumulating so much property that some is destroyed without being used.[51]

The possibility exists, however, that works of art may be created with little effort.[52] Further, Justin Hughes suggests that no good example of the non-waste requirement exists in intellectual property.[53] Therefore, a second school of thought rests on Locke's labor-desert theory, which recognizes the social value created by the author's contribution. The theory posits that it is not the fact of labor but the resulting contribution to social wealth that deserves reward and justifies the author's rights.[54]

On the other hand, Hughes notes that the labor-desert theory fails to account for those who copyright works and refuse to publish them. They gain legal protections while depriving the public of its benefit.[55] Although this problem seems partially answered by the fact that the author in such cases gains few rewards, the copyright does impose some limitations on the public.

A rule-utilitarian theory may reconcile these problems. This theory would justify the quid pro quo regardless of the individual facts behind the creation. Even if the artistic creation required no individual labor or produced no public benefit, the rule itself would be seen to function sufficiently well that it should be maintained.[56]

Hughes explains the "idea" of copyright law as representing the first amendment concerns[57] and substitutes "execution" for "expression" to inject labor into the equation. Idea-expression therefore equates with idea-execution.[58] Idea is the initial creative step; execution is the labor necessary to put it in final form.[59] Execution always involves labor; idea may or may not.[60]

The difference, the uniqueness, and the importance to society is in the execution. The idea of orchestrating Pictures at an Exhibition . . . is not worth much in itself, nor is the thought of doing a painting of the front of the Rouen Cathedral basked in sunlight. But each idea has proved to be a foundation for more than one significant execution.

In these examples the distinction between idea and execution is drawn at a gross level. Although the distinction may seem intuitively right, it can be blurred and redrawn by focusing on different levels of detail. There is not just the idea of orchestrating a piano piece, but the more detailed idea of using a particular motif in the third movement, and the even more detailed idea of using a particular percussion instrument in the forty-seventh stanza of that movement. The achievement in writing fiction or in composing may be in the execution precisely because each turn of phrase, musical or literally [sic], is the result of a creative event.[61]

These theories promote some understanding of the problem, but they do not provide clear answers. Hughes admits that the courts often draw the line contrary to the idea-execution theory. Society may have a pressing need for copyrighted materials, such as the Zapruder film of the Kennedy assassination, but those items remain copyrightable.[62]

Applied to music, the idea-execution theory does not make the idea-expression dichotomy any easier. Just as all musical elements are expressive, virtually all require execution. Even if musical ideas may arrive unbidden, on the "eureka" theory, the ideas cannot be communicated without substantial execution. The public obviously does not believe that all of the composer's efforts deserve reward. For their part, composers continue to produce new works, suggesting that the utilitarian principle is not out of balance. However, if music's many expressive elements were all afforded protection, numerous works of substantial variety and originality would infringe prior works. The chilling effect would have substantial impact on composers. The public shows no indications that it wants to move in this direction.

Not surprisingly, some commentators suggest that the idea-expression dichotomy simply does not exist in music.[63] All aspects of music are expressive and yet all are inseparable from fundamental principles. Courts also admit the extreme difficulties involved when the doctrine is applied to music.[64] Perhaps idea and expression merge in music; at the very least, they seem to overlap to large degree.

The Origins of the Idea-Expression Dichotomy

In 1853, copyright was held to protect against only literal copying. A translation of Harriet Beecher Stowe's Uncle Tom's Cabin did not infringe the original because it used different words.[65] Similarly, in White-Smith Music Publishing Co. v. Apollo Co.,[66] the Supreme Court held that a work of music was not infringed by the making of a piano roll, because "the statute has not provided for the protection of the intellectual conception apart from the thing produced."[67] Protection in both cases was construed too narrowly. Subsequent legislation overturned the White-Smith decision, providing some greater protection for the concept.[68]

The concept cannot be unlimited without erring on the other side. Judge Learned Hand in Nichols v. Universal Pictures[69] devised the abstractions test:

Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out.[70]

The more concrete aspect of expression is protected by copyright; but at some level of abstraction, expression becomes more "idea," to which protection does not extend.[71] Hand's abstractions test rejected the simpler Stowe method of ignoring the distinction between abstract idea and concrete expression.[72] This was Hand's first attempt at devising a solution to the scope of protection:

He turns the question into one of substantial taking, and for purposes of this test the substance of a work is chiefly the details and incidents. The more abstract and general the material the plagiarist takes, the less substantial is the taking. Where the boundary is, that is, how abstract or unsubstantial the material taken must be in order to be beyond the scope of protection, he does not attempt to say. He concedes that no one has been able to fix that boundary and doubts whether anyone can. What is a "substantial taking" is left for resolution in the individual cases.[73]

Hand returned to this question in Sheldon v. Metro-Goldwyn Pictures Corp.[74] He discussed two plays in considerable detail, noting similarities in the plot and character development. Finding plagiarism, he wrote:

A play may be pirated without using the dialogue. Were it not so, there could be no piracy of a pantomime . . . yet nobody would deny to pantomime the name of drama. Speech is only a small part of a dramatist's means of expression; he draws on all the arts and compounds his play from words and gestures and scenery and costume and from the very looks of the actors themselves. . . .

The play is the sequence of the confluents of all these means, bound together in an inseparable unity.[75]

Thus, even Hand, a prevailing force behind the idea-expression dichotomy, recognized that all elements of a work of art were inseparable. Although the dichotomy may be an essential aspect of copyright law, its necessity does not refute the great difficulty of distinguishing idea from expression. Courts should approach the issue cautiously, realizing that individual elements can never be neatly categorized.

Defining the "Idea" in Music

The problem is brought more sharply into focus by the difficulty of defining a musical idea[76]. Musicians use the term "idea" rather freely, not in the sense of distinguishing an idea from expression. Idea denotes a beginning point or motivating force in music that may take many forms.

Similarity of extra-musical elements, such as dramatic concepts, might be asserted as similarity of musical idea. But such similarities are not part of the equation, and the existence or non-existence of extra-musical similarities proves nothing. Composers do not create or copy music according to fanciful associations and representations. Music, a non-representational art, adheres to its own internal principles of organization and expression.[77]

Musicians often characterize the motive, what Reti viewed as the organic unit in music, as an idea. However, motives function in the foreground where expression seems most concrete. Motives most often concern melody, which tends to be the most easily recognized element‑-the one instinctively afforded the most protection. Nevertheless, the entire musical work may well flow from this highly expressive aspect.

The organic unit in music offers greater possibilities for meeting the legal criteria of an idea when it functions in the background. Schenker's organic unit, tonality, might be analogous to the common truth or scientific principle to which copyright cannot extend.[78] However, it fails as a legal idea from other perspectives. Tonality is so basic that, if it were the idea, the majority of music would express the same idea. The Ninth Circuit's test requiring first similarity of idea so often be met as to be meaningless. Further, because tonality infects virtually all aspects of music, locating the idea in tonality would not help draw the line between idea and expression.

The courts' references to literary ideas existing in plot, theme, character, and sequence of events suggest that musical form might provide the basis for idea.[79] A formal scheme in itself, like sonata form or theme and variations, is not expressive. But formal schemes in music tend to be quite flexible; in application formal schemes might contain more expressive elements than the layman expects. Paradigm forms exist only in theory. Further, the form can be defined only by a thorough analysis of expressive elements‑-manifestations of tonality, thematic development, repetition, and imitation. Defining form as idea would require the Ninth Circuit to scrap their intrinsic-extrinsic test, which requires expression to be judged without benefit of analysis.

Courts have suggested that certain compositional devices should be considered idea. The Selle jury instructions defined the melodic sequence as idea.[80] But a sequence develops a presumably original figure or motive and contains all of the expressive capacity attributable to melody. In fact, sequences tend to be one of the few expressive elements capable of liberating themselves from the influence of tonality.[81] In that sense, they are perhaps one of the most expressive elements and most deserving of protection. The device itself cannot be protectable: a plaintiff could not say that his work was infringed by the mere presence of a sequence in another's work. Nor could the defendant exonerate his plagiarism simply by noting that the similarities are contained in a sequence. Neither side gains anything particularly useful by arguing the presence of these devices.

Any number of compositional devices might lead to the same unproductive arguments. Devices overlap and intermingle with expressive elements.[82] Composers employ devices primarily as means of development and prolongation. This approach to the idea-expression dichotomy will not aid the trier of fact unless the plaintiff asserts the clearly untenable position that the use of a similar device without regard to its content is a substantial similarity. It is hard to imagine such a claim being filed, much less surviving summary judgment.

Although the unprotectable nature of stylistic influences was argued in Chapter 7, style also seems to fail as a candidate for idea. Style exists in various parameters, some primarily structural and others purely expressive. Style probably originates as a set of resulting phenomena but gradually becomes a normative influence, an evolution that must be complete before the phenomena can properly be termed style. Thus, style generally pre-exists the composer's contribution, and the public may hold a superior claim to its determinate elements. However, style cannot be considered a generative influence except in the most pedestrian way; a composer could hardly achieve any degree of originality if his idea consisted only of a stylistic model. Rather than comparing style to the copyright concept of idea, then, a better analogy exists between style and the trademark doctrine of genericism. Style consists of elements that do not denote source (composer), but those which typify all products with the same purpose (genre).

Although one can find unprotectable components of music, they do not fit the legal concept of idea. Music's normative aspects tend to be unprotectable while its generative aspects deserve the greatest protections. Thus, the link between idea and expression has a very different character in music than in other genres. Musical expression does not convey an unprotectable musical idea; expression conveys a highly protectable idea through unprotectable musical principles.

Because music lacks concrete elements found in many other areas of intellectual property and lacks the representative elements found in other arts, it is less susceptible to the idea-expression terminology. But there are aspects of music so commonly used, such as principles of organization and unity, that they should not comprise part of the individual's claim of ownership. The limited extent to which those principles can be described in the abstract belies their common use. Further, one can always argue that these common elements are expressive in nature. In order to protect the public claim adequately, law must deny protection to some of the expression.

The idea-expression dichotomy then fails in music. Properly defined, protection of expression overextends the individual's claim. As actually applied by those trying to adhere to the legal principles, it does violence to the concept of music and generates conflicting terminology that confuses the trier of fact, misfocuses the inquiry on irrelevant data, and leads to erroneous and inconsistent results.

The Policy Question

The idea-expression dichotomy still has some application to music and must be addressed. Protection of a composition cannot extend to include all expressive elements, because most must remain freely accessible. The current idea-expression formulation has two failings: improper terminology and preconceived notions of where the dividing line lies. In particular, the Ninth Circuit's intrinsic-extrinsic test seeks to accomplish the impossible by categorizing every element before analysis begins.[83] Virtually all elements of music are expressive; even form and style are not so rigid that they can be considered non-expressive.[84] Thus, the intrinsic-extrinsic test is built on a faulty premise that precludes an intelligent assessment of similarities.

A better terminology refers to music's hierarchies: the background, middleground(s), and foreground. Middleground and background are analogous in many ways to Hand's abstractions test. Those elements removed from the foreground tend to provide musical context. Although context remains highly expressive and easily perceptible, it tends to employ more generalized relationships that will commonly result in more similarities. If middleground and background elements were protectable, many diverse and original foreground expressions would be preempted.

Musical functions seem more analogous to common truths and scientific principles. The need to resolve harmonies, to reach cadences, to follow rules of counterpoint, and to adhere to myriad principles of organization and development create numerous similarities that have nothing to do with plagiarism. Stress and disunity created by transitory departures from these principles also appear in any interesting work. Many such departures have become common idioms, such as the evaded resolution that received so much attention in Gaste.[85] Its corresponding placement at the end of an eight-measure phrase is hardly remarkable. Function grows more assertive as resolutions are approached. Common musical truths gradually prevail over freedom, diversity, and originality to convey a sense of repose and unity.

Function and the various musical hierarchies are "bound together in an inseparable unity."[86] Function ties the foreground to its musical context. Hans Keller defined functional analysis as "postulating that contrasts are but different aspects of a single basic idea, a background unity."[87]

Keller proposed a method that would attempt "to elucidate the unifying functions of the living organism that is a musical work of art." He saw his analytical work as the purely objective isolating of background unities, and strongly refuted charges of subjectivity. Unlike Reti's treatment of a single movement, Keller saw the whole musical structure proceeding from a single idea. He added to this view the idea of the "suppressed background," too obvious to be stated by the composer yet vitally important for the analyst to reconstruct in order that the unity of what followed might be demonstrated. For him, the contrasts on the surface of a piece of music were "manifest," and the unity that lay behind it was "latent." It was precisely the analyst's job to demonstrate that what appeared new was not new at all. This concept of background and foreground was comparable with Schenker's structural layers in that the structure lies at the back, but is totally different in that Schenker's background comprised the Ursatz projected, stretched, "composed out," whereas Keller's background comprised an ever-present idea, a model that contains the common elements of all the work's themes.[88]

The unprotectable nature of middleground, background, structure, and function do not remove them from the question of substantial similarities. In this respect alone the intrinsic-extrinsic test offers a superior analysis. Krofft requires the plaintiff to show both substantial similarity of general ideas under the extrinsic test and substantial similarity of expression of those ideas under the intrinsic test.[89] Similarity of ideas in music must be translated into similarity of background and middleground features and similarity in the functional relationships between those hierarchies and the foreground.

Originality in music may occur in various hierarchies, although it is most likely to be found in foreground diminutions. Nevertheless, the scope of protection must not be defined according to labor, execution, or expression. Protection should extend only to foreground diminutions as a matter of policy. Audience reactions in the marketplace confirm that lay listeners accept the strongest similarities in function and context without questioning originality. Composers tend to adhere to these common features without benefit of copying any specific work, a fact which suggests that infringement requires stronger indicia of copying. Finally, the division between foreground and middleground offers an opportune target because of its analytical validity.

The rule-utilitarian nature of this approach cannot be denied. However, room remains for analysts to disagree and to interpret the works according to their own peculiar nature. Rigid application of rules does not comport with the abstract nature of music. But limiting protectability to original foreground elaborations offers the court a workable guideline with musical significance that effectively balances the interests involved.

Plaintiffs may find this rule disadvantageous, because it seems to offer the defendant two lines of defense. But the point is not to strike equilibrium between plaintiffs and defendants. The history of litigation on this issue reveals that plaintiffs have often asserted a claim based on access and similarities per se without regard to the nature of those similarities. Usually such claims fail, but the trier of fact has at times been misled into believing that similarities confined to the background mattered or that a hodge-podge of isolated similarities across the entire spectrum of hierarchies could be packaged as substantial. Where a defendant copies a plaintiff's composition in a way that deprives the plaintiff of his economic interest, similarities of foreground bound by a nexus to similarities of middleground will be manifest.

Conclusion

The idea-expression dichotomy in music must be reformulated to give the composer protection for his foreground elaborations and to retain all functional and middleground aspects of music in the public domain. The tests for substantial similarity set forth in Chapter 7 effectively address the proper scope of protection. The tests require similarity of foreground, similarity of middleground, and a unifying nexus between the two. Thus, Krofft's requirement that the plaintiff must show both similarity of idea and similarity of expression of that idea offers an appropriate model for cases of music infringement.[90] However, contrary to the intrinsic-extrinsic test of Krofft, the categorization of idea versus expression or middleground versus background cannot precede extensive analysis.

The economic question is highly relevant, but only after an independent determination of copying. Otherwise the inquiry degenerates into one merely of likelihood of confusion. This is not copyright law. The aesthetic question is relevant at all levels: to what is protectable and to what similarities are substantial, both on the issue of copying and on misappropriation. However, the aesthetic question must be addressed ultimately as a policy question. Even so, the policy will be nonsensical and arbitrary if it does not constantly look to the aesthetic principles that define the very creations the policy is designed to protect.

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[1] 17 U.S.C. § 106 essentially gives the owner exclusive rights to reproduce the work in copies, to prepare derivative works, to distribute copies, and to perform or display the work publicly. The bundle of rights set out in § 106 is limited and qualified by §§ 107-118.

[2] 17 U.S.C. § 501.

[3] Id. § 102(b).

[4] U.S. Const., art. I, § 8, cl. 8.

[5] Georg W. F. Hegel, Philosophy of Right (1821), (Oxford: Clarendon, 1952), 55.

[6] "What is peculiarly mine in a product of my mind may, owing to the method whereby it is expressed, turn at once into something external like a `thing' which eo ipso may then be produced by other people. The result is that by taking possession of a thing of this kind, its new owner may make his own the thoughts communicated in it or the mechanical invention which it contains, and it is ability to do this which sometimes (i.e. in the case of books) constitutes the value of these things and the only purpose of possessing them." Hegel, supra note 5, at 54.

[7] Id. at 54-55.

[8] Id. at 55.

[9] Id. at 55-56.

[10] Id. at 56.

[11] "[N]owadays we scarcely hear the word `plagiarism,' nor are scholars accused of stealing each other's results. It may be that honour has been effective in abolishing plagiarism, or perhaps plagiarism has ceased to be dishonourable and feeling against it is a thing of the past; or possibly an ingenious and trivial idea, and a change in external form, is rated so highly as originality and a product of independent thinking that the thought of plagiarism becomes wholly insufferable." Id. at 56.

[12] "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in Science and useful Arts." Mazer v. Stein, 347 U.S. 201, 219 (1954); see 1 M. & D. Nimmer, Nimmer on Copyright § 1.03[A] (1989).

[13] 17 U.S.C. § 107.

[14] Sitzer, Copyright Infringement Actions: The Proper Role for Audience Reactions in Determining Substantial Similarity, 54 S. Cal. L. Rev. 385, 395 (1981).

[15] Sherman, Musical Copyright Infringement: The Requirement of Substantial Similarity, 22 Copyright L. Symp. (ASCAP) 81, 84 (1977) (citing Hirsch v. Paramount Pictures, Inc., 17 F. Supp. 816, 818 (S.D. Cal. 1937)).

[16] Arnstein v. Broadcast Music Co., 137 F.2d 410, 412 (2d Cir. 1943).

[17] Sitzer, supra note 14, at 390 (1981) (quoting 3 M. & D. Nimmer, Nimmer on Copyright § 13.03[E][2] (1978)).

[18] Sitzer, supra note 14, at 390-91.

[19] 154 F.2d 464, 473 (2d Cir. 1946).

[20] "Unfortunately, this demand test has become the test not only for fair use but for substantial similarity as well; that is, two works will be deemed to be substantially similar if the defendant has copied so much of plaintiff's work as to decrease the demand for the original." Sherman, supra note 15, at 115.

[21] 905 F.2d 731 (4th Cir.), cert. denied, 111 S. Ct. 511 (1990).

[22] Atonal works necessarily follow some different principles of organization, and an infringement claim involving two atonal works might raise interesting issues not addressed here. Until atonal works acquire considerably more economic value, such a claim seems highly unlikely.

[23] Sitzer describes three schools of thought concerning the relative benefits of the lay listener test to plaintiff and defendant. One school believes the lay listener test benefits the defendant because laymen cannot hear subtle similarities. Supporting this school, Sitzer quotes Nimmer, "Unless the offending work has completely lifted an entire scene, the creative author has no chance against a clever paraphraser." A second school argues that defendants benefit not because the lay listener perceives too little but because experts perceive too much. This second school apparently believes that experts analyze aspects of music that laymen cannot hear. Finally, a third formulation posits that the lay listener's inability to perceive subtle distinctions benefits the plaintiff. Sitzer, supra note 14, at 403-04.

[24] Sitzer, supra note 14, at 415.

[25] 905 F.2d at 735.

[26] Sitzer, supra note 14, at 402-03.

[27] Congress shall pass no law abridging the freedom of speech. U.S. Const. amend. 1.

[28] "Federal securities regulation, mail fraud statutes, and common-law actions for deceit and misrepresentation are only some examples of our understanding that the right to communicate information of public interest is not `unconditional.'" Curtis Publishing Co. v. Butts, 388 U.S. 130, 150 (1967). American Communications Association v. Douds, 339 U.S. 382 (1950), announced an ad hoc test for balancing the public and private interests. See generally, Sobel, Copyright and the First Amendment: A Gathering Storm? 19 Copyright L. Symp. (ASCAP) 43 (1971).

[29] 1 M. & D. Nimmer, Nimmer on Copyright § 1.10 (1989).

[30] Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's "Total Concept and Feel," 38 Emory L.J. 393, 396 (1989).

[31] Id. at 394.

[32] Id. at 396.

[33] "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. § 101.

[34] 56 U.S. 62 (1854).

[35] Id. at 62.

[36] Id. at 65.

[37] Id. at 68.

[38] Id. at 112-13.

[39] "Any person who shall, without the consent of the registrant use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive . . . shall be liable. . . ." 15 U.S.C. § 1114(1)(a).

[40] "The term `trademark' includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify and distinguish his goods . . . from those manufactured or sold by others and to indicate the source of those goods, even if that source is unknown." Id. § 1127.

[41] Id. § 1064(c).

[42] 101 U.S. 99 (1879).

[43] Samuels, The Idea-Expression Dichotomy in Copyright Law, 56 Tenn. L. Rev. 321, 326 (1989).

[44] 101 U.S. at 100.

[45] Id.

[46] Id.

[47] See also, Yen, supra note 30, at 400-01.

[48] John Locke, Second Treatise of Government (1698) (New York: Liberal Arts Press, 1952), 16-17; Hughes, The Philosophy of Intellectual Property, 77 Geo. L. J. 287, 297 (1988).

[49] Locke, supra note 48, at 22-23.

[50] Locke, supra note 48, at 22-23; Hughes, supra note 48, at 299.

[51] Locke, supra note 48, at 22-23; Hughes, supra note 48, at 298.

[52] The labor theory of property does not work [when applied to intellectual property] if one subscribes to the "eureka" theory of ideas. Hughes, supra note 48, at 300.

[53] However, Hughes also posits the existence of a second common store of "potential ideas." Id. at 323.

[54] Id. at 305.

[55] Id. at 308-09.

[56] See id. at 310.

[57] Idea-expression balances the need to reward artists with the need to maintain free access to ideas. "The impact, if any, of the first amendment on copyright has not been discussed by the [Supreme] Court. We believe this silence stems not from neglect but from the fact that the idea-expression dichotomy already serves to accommodate the competing interests of copyright and the first amendment." Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1170 (9th Cir. 1977) (quoted by Hughes, supra note 30, at 313). Cf. Yen, supra note 30, at 394-96.

[58] Hughes, supra note 48, at 314.

[59] Id. at 310.

[60] Id. at 311.

[61] Id. Hughes also points out that execution may precede idea.

[62] "Life claims no copyright in the events at Dallas. They can be freely set forth in speech, in books, in pictures, in music, and in every other form of expression. All that Life claims is a copyright in the particular form of expression of the Zapruder film." Time, Inc. v. Bernard Geis Associates, 293 F. Supp. 130, 143 (S.D.N.Y. 1968). Reproduction of individual frames of the film was found to be a fair use. See 1 M. & D. Nimmer, Nimmer on Copyright § 1.10[D] (1989); see also, Hughes, supra note 48, at 313-14. "The courts' ad hoc approach in this area suggests that copyrightability may be based as much on what we feel are people's deserts as on what we feel are society's informational needs." Id.

[63] See, e.g., Keyt, An Improved Framework for Music Plagiarism Litigation, 76 Calif. L. Rev. 421, 442-43 (1988).

[64] See, e.g., Gaste, 863 F.2d 1061, 1068 n.5 (2d Cir. 1988) (Drawing the line between idea and expression is not always easy, particularly in musical works). The Gaste court seems to seriously understate the problem and gives no clues as to when drawing the line might be easy. See also, Comment, Does Form Follow Function? 35 U.C.L.A. L. Rev. 723 (1988) (discussing difficulty of demarcating idea-expression line).

[65] Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (No. 13,514).

[66] 209 U.S. 1 (1908).

[67] Id. at 17.

[68] The White-Smith decision also provided impetus to grant protection upon "fixation." 1 M. & D. Nimmer, Nimmer on Copyright § 4.05[A] (1989).

[69] 45 F.2d 119 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931).

[70] 45 F.2d at 121.

[71] Samuels, supra note 43, at 325.

[72] Id. at 343-44.

[73] Cracas, Judge Learned Hand and the Law of Copyright, 7 Copyright L. Symp. (ASCAP) 53, 71 (1956).

[74] 81 F.2d 49 (2d Cir.), cert. denied, 298 U.S. 669 (1936). Judge Hand defined "fair use" in this case as copying the theme or ideas rather than their expression. This approach has been criticized for confusing non-copyrightable ideas with non-infringing, or fair, use of copyrighted expression. Sobel, supra note 28, at 50.

[75] 81 F.2d at 55-56. The claim asserted that the film "Letty Lynton" infringed play "Dishonored Lady." "The defendants took for their mis en scene the same city and the same social class; and they chose a South American villain. Each heroine has an inherited disposition toward waywardness; each is overcome by passion in the first part. Their love, as distinct from their lust, was pallid. The overall plot bears strong similarities throughout. The threat scene is carried out in almost exactly the same sequence of events. The sequence of its details is pro tanto the very web of the author's dramatic expression. Both make the substitution of an examination by a district attorney, rather than the trial of the true story and the book. As the heroine reaches her breaking point, a man unexpectedly provides her an alibi. It provides the turning point of the drama and alone prevents its ending in accordance with the classic canon of tragedy; i.e., fate as an inevitable consequence of past conduct, itself not evil enough to quench pity. It is the essence of the authors' expression, the very voice with which they speak." Id. at 54-55.

[76] Other arts encounter this same problem. It is always difficult to define an artistic “idea” as an element distinct from expression. Music is unique in its complete freedom from representational associations. Compounding the problem, no terminology exists to describe music in the abstract. Thus, although all arts may be equally incapable of this division into idea and expression, the failings of the legal doctrine are more obvious in music.

[77] Hughes' reference to the idea of orchestrating a piano work provides a poor example. Although the idea is not strictly extra-musical, it is the idea for creating a derivative work and not the source of much of the resulting expression.

[78] Schenker rejects the terms "melody," "motive," "idea." He compares "fundamental structure" composers, those in command of linear progressions, with "idea" composers who ramble constantly. Heinrich Schenker, Free Composition, trans. and ed. Ernst Oster (New York: Longman, 1979), 28.

[79] The Ninth Circuit has defined literary ideas as the concrete elements of plot, theme, dialogue, mood, setting, pace, characters, and sequence of events. Shaw v. Lindheim, 919 F.2d 1353, 1356-57 (9th Cir. 1990).

[80] Selle v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984), Record at 1078. Gaste v. Kaiserman determined that a sequence could be expression. 863 F.2d 1061, 1068 n.5 (2d Cir. 1988).

[81] A sequence follows its own internal logic to such a strong degree that tonality is temporarily suspended. What matters from a tonal standpoint is simply the beginning and ending point of the sequence. Allen Forte and Steven E. Gilbert, Introduction to Schenkerian Analysis (New York: Norton, 1982), 99.

[82] Gaste said while an "evaded cadences" might be idea, its identical placement within both songs was expression. 863 F.2d at 1068 n.5. See supra page 370. The content (expression) of these cadences was different, a point the court never grasped. However, one cannot transform the idea of using a device into expression simply by noting its similar placement. Formal schemes, fugues for example, may rely on certain devices at corresponding points. According to Gaste's reasoning, the tonic six-four cadence introducing virtually every cadenza in the common practice period would be protectable.

[83] The Ninth Circuit is no longer the only circuit to follow this test.

[84] Narmour follows this logic in his implication-realization model. "For every pattern, every form, can be viewed on any given level as both a formation of something and a transformation of something else. Every form is both the basis for an implication and the result of a realization." Eugene Narmour, Beyond Schenkerism (Chicago: University of Chicago Press, 1977), 120. Thus, every element tends to be both idea (implication) and expression (realization).

[85] Gaste v. Kaiserman, 863 F.2d 1061, 1068 n.5 (2d Cir. 1988).

[86] Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 55-56 (2d Cir.), cert. denied, 298 U.S. 669 (1936). See supra page 498.

[87] Ian Bent, Analysis (New York: Norton, 1987), 60; quoting Hans Keller, "Functional Analysis: Its Pure Application," Music Review 18 (1956-1957): 202.

[88] Bent, supra note 87, at 61.

[89] Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990) (citing Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)).

[90] Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir. 1977).